What does it mean that Judaism is a religion of loopholes?
For Elana Stein Hain, practices like the eruv and the selling of chametz can create a new sort of religious consciousness
Elana Stein Hain’s book on ‘Circumventing the Law’ began life as a PhD thesis. Courtesy of Elana Stein Hain
By Dan Friedman February 13, 2025
According to the Epic of Gilgamesh, the whole of human existence is based on a loophole. The gods swore not to tell any mortal about the impending flood so none would escape alive. The god Ea, though, decides to tell the walls of the house of the mortal Utnapishtim about the flood and how to escape it. How was Ea to know that Utnapishtim was there in between his walls to learn, plan and survive? Whether legendarily important, important for weekly religious observance like the eruv, or theoretically important — like the significance of ones stated intent to ritually slaughter an animal when one takes it out of a pit on a feast day but don’t actually kill it — there are loopholes, circumventions, and legal corrections riddling Judaism’s 5000 year-old corpus.
The loopholes surrounding these texts, practices and constructions are the subject of Circumventing the Law: Rabbinic Perspectives on Legal Loopholes and Integrity by Elana Stein Hain, the Rosh Beit Midrash and a senior research fellow at the Shalom Hartman Institute of North America where she also hosts TEXTing, a bi-weekly podcast that considers issues relevant to Jewish life through the lens of Torah. As a former colleague of hers, I spoke to her about the book that grew out of her Columbia PhD thesis.
Dan Friedman: I thought that loopholes would be sort of scofflaw situations, rabbis thumbing their noses at laws, but that’s not at all the picture you paint, you show them as safety valves ensuring the continuation of the existing law and also a manifestation of conflicting values. Did I read it right?
Elana Stein Hain: Yes! Here are the three images that I was toying with for the cover, which in some ways, tell that story.
The first is, OK, let’s just get around it — the tax one. The one to the right really spoke to me, because it’s showing that sometimes, when you loophole, what you’re doing is actually maintaining the law you are loopholing. But then because sometimes they say yes, sometimes they say no, I went with the question mark.
But when I look, at least, at how the early rabbinic conversation goes, it seems very clear to me that their goal is trying to preserve the heart of the law. And when they see people exploiting the loophole, they’re kind of disgusted. We all know that the minute you make a rule, people start devising exceptions to it but questions are, loopholes for what purpose and to what end? How will that ultimately impact the rule? And I think this exercises the rabbis a lot, even when they have authority to change the law, they still use loophole mechanisms to get around it. And that, to me, says this isn’t just about the idea that the law can’t be technically changed. It’s actually a sense of, how are you going to maintain the law while getting around the law? You can’t really do that when you have equity courts that say, OK, let’s change it. The rabbis don’t want to change it. They want to make an exception around it, but they don’t, they don’t want to change it, which is kind of fascinating to me.
What about the two famous loopholes: the eruv and the selling of chametz on Passover? We are not allowed to carry on Shabbat except in the house, so we put up eruvs to make entire districts “households.” And, at Passover, instead of just cleaning our houses of any leavened products, we symbolically “sell” all of it to some non-Jew with the clear understanding that we’ll buy it back again after the festival. How do they work?
For chametz, I think the rabbis initially envision it as a problem that an individual might have in an ad hoc way. Over time, we get to a situation where this is not ad hoc, and it’s not for individuals. It’s a pervasive problem because, for example, Jews are making beer and they have lots of barley. And what you’re now saying is not, “are you willing to part with this box of bread?” What you’re saying is, “Are you willing to endanger your livelihood?” And it’s so clear in the rabbinic discussion how often the danger to people’s livelihood is a motivator for circumventing the law.
Meaning, what the loophole allows is something that the law itself cares about. The Torah is protective over our possessions, and that’s a beautiful image.
Now, after a while, it stops mattering whether the innovation was for people to be able to sell chametz because they are beer makers, everyone just does it. But you know what gets lost in this fossilization, lost in the shuffle of “people should sell their chametz instead of getting rid of it?” You lose the creativity and the organic aspect of what it looks like to prepare for a holiday, so you have to find it in other ways.
The other side is you have people who don’t have any chametz in their house, and they’re selling possible chametz that might have been absorbed into the walls of their pots. Which is a major departure! So what’s happened here is a flip from the original intention, which was supposed to be lenient in an attempt to keep the law, to now become a stringent way of keeping the law. So those two directions, I think, are really interesting, just in terms of trust. When you put a helpful tool into people’s hands, they’re going to be independent agents, and they’re going to go in different directions with it, depending on their own proclivities, their own relationship to the law, their own sense of ability to be creative.
And eruv?
The eruv thing, I think is a different story, because, actually, it started as a stringency. Biblically, you can carry anywhere that is not narrowly defined as a public thoroughfare. It’s only rabbinically — and it’s offered as something that Solomon decreed, so is that rabbinic? Is that biblical? — that they said you can’t carry even in places that are similar to the biblical version of a public thoroughfare. So they made it stricter.
But then they come along and say, but you can if you have something that kind of reminds you that it’s different from a biblical thoroughfare, you can carry. So they’re now creating a different kind of consciousness. They’re creating a consciousness that basically says this whole thing is for the purpose of remembering that we don’t just scoff at the Bible saying you can’t carry in a public thoroughfare. We are very protective over it.
That new consciousness invites things like the beautiful approach that JTS professor David Kraemer offers, which is that the eruv creates a map of Shabbat observance. You can walk into a place and say, “Where are the Shabbat-observing people?” That is so much bigger than whether I can take one or both of my animals out of a pit during a festival if I pretend I am going to slaughter and eat one of them.
Your book is about “loopholes and legal integrity” but you talk about “circumventions” mostly and “ha’arama” in Hebrew, which seems to mean a similar thing. What is the difference between these terms? And then you also talk about “takkanot” — what are they?
Circumventions include both loopholes and fictions. A loophole is generally where you find a gap in the law. A fiction is, you’re going to pretend that situation A is like situation B, even though it’s not. For example: we can only judge till 12:00, so when the clock goes to 12:05 we agree to move it back to 11:59. It’s not 11:59 but we’re treating it that way legally, right? So these are the two within circumventions.
In Hebrew, or in rabbinics, ha’arama seems to be used for private circumventions. For example, I happen to have a fire in my house on Shabbat. How often does that happen to people? How often does it have to happen before the rabbis address it? On the other hand, a takkana is a rabbinic decree that is for a pervasive problem, a pervasive issue, and usually for a rabbinic decree, they will find some authority for what they’re doing from a verse.
A third of the book is endnotes, how come?
When I wrote the book, I was writing for three audiences. One audience is an academic Jewish Studies audience for whom you’ve got to make sure that all the footnotes are there, all the ducks in a row. Another audience is people who are legal scholars and they’re interested in this from the point of view of law and legal theory. And a third is for people who are curious Jews who want to know about Judaism and Jewish law.
So when I look at the endnotes, I see not just an opportunity to let people know my bona fides, but I also see an opportunity for people who actually do want to learn more and think more, not just in the packaging that I gave them, but they want to go back to a source, an idea, a secondary piece of literature, a primary piece of literature, to give them the opportunity to go in that direction themselves. And I think sometimes when you put that stuff in the body of a text, it can overwhelm the text and be an off ramp. But putting it at the end, it’s optional. If you don’t want to read the endnotes, don’t read the endnotes!
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